Michigan Governor Rick Snyder recently signed into law an amendment to the Governmental Liability for Negligence Act. MCL 691.1402a. This statute describes the extent of municipal duties and liability in claims relating to sidewalk maintenance.
Municipalities are required to maintain sidewalks in reasonable repair and are not liable for the failure to maintain sidewalks unless a plaintiff proves the municipality knew, or should have known, of the defective sidewalk more than 30 days before the occurrence. A municipality is presumed to have maintained the sidewalk in reasonable repair. This presumption is rebutted only upon a showing that the proximate cause of injury was (1) a vertical discontinuity of 2 inches or more or (2) a dangerous condition in the sidewalk itself other than a vertical discontinuity.
Prior to its amendment, municipalities were limited as to the defenses they could assert. The amended statute permits municipalities to assert any defenses available under the common law with respect to premises liability claims. The amended statute specifically mentions the open and obvious defense, which protects landowners from liability if an average user of ordinary intelligence would have been able to discover the condition upon casual inspection. Landowners are under no duty to warn about open and obvious conditions.
The amendment may place plaintiffs in a precarious position. If the plaintiff presents evidence of a vertical discontinuity greater than 2 inches in order to rebut the presumption that the sidewalk was in reasonable repair, the plaintiff is also presenting evidence that may support a finding that the vertical discontinuity was open and obvious. See eg Eaton v Frontier Communications, unpublished opinion of the Court of Appeals dated Feb. 9, 2016 (Docket No. 324499) (vertical discontinuity of 2.5-3 inches was open and obvious).
Attorneys in our municipal law practice group are able to assist should you have any questions regarding this recent amendment or any municipal law issue.
Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or firstname.lastname@example.org.